Citation Nr: 9910448
Decision Date: 04/15/99 Archive Date: 04/29/99
DOCKET NO. 97-21 974 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from January 1954 to February
1974. He died in September 1996. The appellant is the
veteran's surviving spouse.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of December 1996 by the
Department of Veterans Affairs (VA) St. Louis, Missouri,
Regional Office (RO). A hearing was held at the RO in July
1998 before the undersigned Member of the Board.
FINDINGS OF FACT
1. The veteran died on September [redacted], 1996, at the age
of 64 years.
2. During his lifetime, the veteran established service
connection for bilateral high frequency hearing loss, rated
as noncompensably disabling.
3. The veteran's death certificate shows that the immediate
cause of death was cardiopulmonary arrest due to a possible
myocardial infarction due to end stage chronic obstructive
pulmonary disease.
4. There is no competent medical evidence of the presence of
the disorders listed on the death certificate as causes of
death until many years after separation from service.
5. There is no competent medical evidence linking the
veteran's death to his period of active service or to his
service-connected hearing loss.
6. There is no competent evidence that the veteran developed
nicotine dependence during his period of service, or that
there was a link between his chronic obstructive pulmonary
disease and smoking during service.
7. There is no competent evidence that the veteran's death
was related to herbicide exposure.
CONCLUSION OF LAW
The claim for service connection for the cause the veteran's
death is not well-grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant contends that the RO made a mistake by denying
entitlement to service connection for the cause of the
veteran's death. She argues that the veteran's death was
related to cancer which she believes may have been caused by
the veteran's exposure to something in Southeast Asia, such
as Agent Orange. The appellant's representative has also
asserted that the death may have been related to smoking in
service.
In reviewing any claim for VA benefits, the initial question
is whether the claim is well-grounded. The appellant has
"the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well-grounded." See 38 U.S.C.A. § 5107(a); Robinette v.
Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is
"a plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107]." See Murphy v. Derwinski, 1 Vet. App. 78, 81
(1991). If not, the claim must be denied and there is no
further duty to assist the appellant with the development of
evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a)
(West 1991).
To establish service connection for the cause of the
veteran's death, the evidence must show that a service-
connected disorder either caused or contributed substantially
or materially to cause the veteran's death. See 38 U.S.C.A.
§ 1310 (West 1991); 38 C.F.R. § 3.312 (1998). Service
connection may be granted for disability due to disease or
injury incurred in or aggravated by service. See 38 U.S.C.A.
§§ 1110, 1131 (West 1991). If a chronic disorder such as
cardiovascular disease or a malignant tumor is manifest to a
compensable degree within one year after separation from
service, the disorder may be presumed to have been incurred
in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
1991); 38 C.F.R. §§ 3.307, 3.309 (1998).
Service connection may also be granted for disability shown
to be proximately due to or the result of a service-connected
disorder. See 38 C.F.R. § 3.310(a) (1998). This regulation
has been interpreted by the United States Court of Appeals
for Veterans Claims (Court) to allow service connection for a
disorder which is caused by a service-connected disorder, or
for the degree of additional disability resulting from
aggravation of a nonservice-connected disorder by a service-
connected disorder. See Allen v. Brown, 7 Vet. App. 439
(1995).
For a claim to be well-grounded, it must be supported by
evidence, not just allegations. See Tirpak v. Derwinski, 2
Vet. App. 609 (1992). When, as in this case, the
determinative issue involves questions of medical causation
or diagnosis, competent medical evidence is required to make
the claim well grounded. See Grottveit v. Brown, 5 Vet. App.
91 (1993). In dependency and indemnity compensation cases,
such evidence is required to link the cause of a veteran's
death to his service. See Caluza v. Brown, 7 Vet. App. 498,
506 (1995), aff'd per curiam 78 F.3d 604 (Fed. Cir. 1996)
(table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed.
Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998); Darby v.
Brown, 10 Vet. App. 243, 245-6 (1997).
After considering all of the evidence, the Board finds that
it is insufficient to render the claim well grounded. During
his lifetime, the veteran established service connection for
bilateral high frequency hearing loss, rated as
noncompensably disabling (0 percent). The veteran died on
September [redacted], 1996, at the age of 64 years. The
death certificate shows that the immediate cause of death was
cardiopulmonary arrest due to a possible myocardial
infarction due to end stage chronic obstructive pulmonary
disease.
The disorders listed on the death certificate were not
present until many years after the veteran's retirement from
service. None of the disorders listed is mentioned in the
veteran's service medical records nor or shown to have been
manifested within a year after service. The report of a
medical history given by the veteran in October 1973 for the
purpose of his retirement from service shows that he denied
having a history of shortness of breath, pain or pressure in
the chest, a chronic cough, or heart trouble. The report of
a medical examination conducted at that time shows that
clinical evaluation of the lungs, chest and heart was normal.
The Board has considered testimony given by the appellant
during a hearing held in July 1998. She testified that the
veteran developed squamous cell cancer in 1978, and that she
believed that the residuals from the radiation treatment for
that cancer played a role in the veteran's death. She
expressed her belief that the cancer was related to service,
including the veteran's duty in Southeast Asia.
Medical treatment records dated in April 1980 show that the
veteran had noticed lumps in both sides of his neck two
months earlier. Following a biopsy, the impression was
metastatic malignancy, poorly differentiated, to both sides
of neck, primary unknown. A pathology report also dated in
April 1980 shows that the excision of lymph nodes from the
left submaxillary region revealed metastatic poorly
differentiated squamous cell carcinoma with large areas of
clear cell change. The treatment records pertaining to the
cancer do not include any history or medical opinion relating
the cancer to the veteran's military service.
With respect to the claim that the veteran's death was due to
exposure to Agent Orange in service, the Board notes that the
veteran's service personnel records show that he had service
in Vietnam, so exposure to Agent Orange and other herbicide
agents may be presumed if the veteran is shown to develop a
disease listed in 38 C.F.R. § 3.309(e) (1998). See also
38 C.F.R. § 3.307(a)(6) (1998). Under 38 C.F.R. § 3.309(e)
(1998), certain diseases may be presumed to have resulted
from exposure to certain herbicide agents such as Agent
Orange. Significantly, however, the disorders listed on the
death certificate are not among those disorders which may be
presumed to have resulted from such exposure.
Since neither the squamous cell cancer of unknown primary
site treated in 1980 nor the disorders listed on the
veteran's death certificate are among the listed diseases,
the veteran's death may not be presumed to have been due to
Agent Orange exposure. The record otherwise does not include
any medical opinion relating the veteran's death to Agent
Orange exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44
(Fed. Cir. 1994) (holding that service connection for an
unlisted condition can be pursued under the general VA
compensation entitlement system). Although the appellant
expressed her opinion that the veteran's death was due to
Agent Orange exposure, this opinion is not sufficient to
support the claim because lay persons are not competent to
offer medical opinions. See Ruiz v. Gober, 10 Vet. App. 352,
356 (1997); Grivois v. Brown, 6 Vet. App. 136 (1994).
In order for a claim for service connection for nicotine
dependence or a smoking related disorder to be well-grounded,
the claimant must present competent evidence of a link
between his period of service and his post-service nicotine
dependence. See VA General Counsel Opinion 19-37 (May 13,
1997). Significantly, however, there is no competent
evidence that the veteran developed nicotine dependence
during his period of service, or that there was a link
between his chronic obstructive pulmonary disease and his
smoking during service. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-5 (1992). See also Van Slack v. Brown, 5 Vet.
App. 499, 501 (1993) (holding that a veteran's widow was not
capable of testifying as to matters involving medical
causation such as the cause of the veteran's death).
In summary, the record does not include a medical opinion
linking the cause of the veteran's death to his active
service or to his service-connected hearing loss.
Accordingly, the Board concludes that the claim for service
connection for the cause of the veteran's death is not well
grounded. 38 U.S.C.A. § 5107(a). Inasmuch as the claim is
not well-grounded, the VA is under no duty to assist the
appellant in developing the facts pertinent to the claim.
See Epps v. Gober, 126 F.3d at 1468. Furthermore, the Board
is aware of no circumstances in this matter that would put
the VA on notice that any additional relevant evidence may
exist which, if obtained, would well ground the appellant's
claim. See generally McKnight v. Gober, 131 F.3d 1483
(Fed.Cir. 1997). The appellant is entitled, of course, to
apply at any time to reopen her claim for service connection
for the cause of the veteran's death with medical evidence
linking the fatal disease to service.
ORDER
Evidence of a well-grounded claim not having been submitted,
service connection for the cause of the veteran's death is
denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals